Creators of “participatory defense” – a community organizing model for people facing charges, their families, and communities to impact the outcome of cases and transform the landscape of power in the court system

For Trayvon Martin And America, Justice Hinges on Two Words: “Prosecutorial Discretion”

As the tragedy of Trayvon Martin’s death calls the country to examine the racial inequities of the criminal justice system, the conversation must go beyond the impulse to only focus on the man who took his life, George Zimmerman, and the police who let him walk out of their station. If we are to have any meaningful impact on how the system really works, we have to go where the real power lies – with the prosecutors, the ones who control the levers of the system in counties and states across the country.

In Martin’s case, it was prosecutor Norm Wolfinger who decided that Zimmerman should be not charged or detained that fateful evening. That moment of choice by Wolfinger is the most revealing part of the Trayvon Martin tragedy in terms of the vulnerabilities of the criminal justice system. Wolfinger was not acting as a rogue decision-maker circumventing the rules of law enforcement – he was exercising “prosecutorial discretion” – the awesome legal authority given to prosecutors to decide if an act is a matter, or not, for the criminal justice system to consider.

And just as Zimmerman – an alleged racist with a gun – may represent a real threat to America, so too does the role of a Wolfinger – a prosecutor who’s given the completely subjective discretion to deliver or deny justice without any explanation or measure of accountability to the public.

The term “prosecutorial discretion” has the ring of legal jargon that would only be used by lawyers and judges, devoid of any real ethical value, but it is a power that extends out of the courtroom and into the streets. And with Trayvon Martin’s case, as rallies, tweets, celebrities, and civil rights leaders all call out for “justice” – a moralistic sense of rightness – at this stage, as with any case, there is really just one individual making that call from a practical legal framework. Despite the imagery of our criminal court system, as of now Zimmerman’s fate does not hinge upon a jury of American citizens deliberating in room, nor an eyewitness recounting the scene, not even a judge in robe doling out a sentence. All those scenes may eventually play out, but only if a prosecutor decides to press play and file charges.

And this is where communities, often critical of the racial disproportionality of the criminal justice system, end up in a bizarre dynamic with it – relying on the fairness and impartiality of the prosecutor, despite every statistical reason not to. The truth of the matter is that prosecutorial discretion is mostly used to target and incarcerate Americans who look like Martin, rather than attempting to secure justice for his memory.

In my organization, where we work with families who have loved ones facing criminal charges, we see the more common issue of when prosecutorial discretion goes wrong – charging innocent people, or over-charging to get a plea.

Our most stark example is that of Ramon Vasquez, a 30-year-old delivery truck driver and father of two, who was wrongfully charged for murder in Santa Clara County in 2009. Vasquez was not even at the scene of the crime, had no physical evidence connecting him to the crime, and the only thing which the prosecutor used to charge him were loose similarities to the suspect such as being an “average size Hispanic male” and having a tattoo on his neck. In a telling similarity to the allegations that Zimmerman connected Martin’s hoodie with criminality, so too was Vasquez’s choice of attire used against him. They used the fact that he owned a red hat as an example of gang activity. The hat was from his son’s little league team that he coached.

After passing two polygraphs, dissecting the police reports himself, and with community support, the prosecutor dropped the charges, and Vasquez was freed after six months of incarceration. In a rarely used legal device, the court even awarded Vasquez a “factual finding of innocence” – which is a formal acknowledgement of his innocence.

That one prosecutor in California can charge a man with murder with so little, and a prosecutor in Florida can decide not to charge anything, much less murder, with arguably so much evidence (admittance of being the shooter being the obvious one) speaks to how widely subjective prosecutorial discretion is. That prosecutor’s personal bias may influence determinations to charge or not may be up for debate – but that the process is susceptible to it cannot be so easily denied. And the numbers show that little accountability for prosecutors who mis-use their authority.

In California, the Northern California Innocence Project showed startling numbers around prosecutorial misconduct. In their 2010 report, they write, “Judges in California are casting a blind eye to prosecutors who place their thumbs on the scale of justice.” In a study that spanned over a decade, they examined “707 cases in which courts had found prosecutorial misconduct in the 11 year period. Of all of those cases, only six prosecutors were disciplined.”

After the firestorm that erupted once Martin’s murder became national news, Wolfinger recused himself and Florida Governor Rick Scott appointed another prosecutor, Angela Corey, to decide if Zimmerman should be charged. That there is even a grand jury, versus a direct filing of a charge from the prosecutor, is telling.

A common hypothetical that is heard at Martin rallies and by pundits in the media is, “What if the roles of Zimmerman and Martin were reversed?” Civil rights leader Van Jones posed this question on Jon Stewart’s Daily Show last weekend. He concluded to a roaring audience that a Black man who shot an unarmed white man would be detained by police. This is true, but the other reality is that the hypothetical Black man would be facing criminal charges from a direct filing by the prosecutor. No grand jury needed.

The shock and sadness over Trayvon Martin’s death has brought the nation to examine the rules of law and society in a way we have not seen since perhaps the era of Rodney King. Rodney King had the country talking about police in a systemic way – what power they have, how they are regulated, what systems oversee their authority. Police departments’ practices and protocols have been examined, and in some cases, changed, as a result of that new mindfulness borne out of a moment of national attention.

When all is said and done, Trayvon Martin’s death may have us talking about the unexamined power of prosecutorial discretion in the same way.